Abuse of right to prosecute privately

28.MAR.08

EDITOR: I am a British lawyer holidaying with some friends at Prospect. I am surprised that there is not a lot of informed discussion in the newspapers and on the many radio stations about the abuse of the right of private criminal prosecutions, particularly against the Prime Minister currently.{{more}}

Accordingly, I want to submit the following as the starting point of an informed discussion:

1. The right to prosecute privately is a somewhat anomalous historical survival, and extreme care ought to be exercised to ensure that this right be not abused.

2. The right to private prosecution arose historically in circumstances in which central prosecution services by the state were ill-organised; thus, private prosecutors were given much scope for action. The State prosecution services today are highly centralised and organised; so, private prosecutions are of far less value in the judicial process than hitherto.

3. Very often the public interest is not, and cannot be, served by private prosecutions, service private prosecutors are partisan advocates of a client’s cause.

4. Legislative intervention may well be advisable to curb abuse of the right to private prosecutions. Perhaps a private prosecutor ought to be required to apply to the Director of Public Prosecutions (DPP) for a “fiat” (a permission in writing) prior to the filling of a criminal complaint.

5. Magistrates are not required by law to take or sign every private criminal complaint brought before them. Queries, including ones relating to any police investigation and the DPP’s judgment or opinion, by Magistrates ought to be made of the private complainant before signing such a complaint.

6. Repeated private prosecutions by the same lawyers acting for private complainants against the same Defendant are a huge danger to the integrity of he judicial system. The investigative and prosecutorial arms of the State are the proper agencies to take the appropriate actions.

Most of these principles or ideas can be gleaned from a House of Lords’ case in England, reported as Jones v. Whally at [2006]2 AC 63 in the Law Reports. Indeed, Lord Bingham’s judgment in this case is quite instructive. In this regard, his succinct opinion is of relevance:

“A crime is an offence against the good order of the State. It is for the State by its appropriate agencies to investigate alleged crimes and decide whether offenders should be prosecuted. In times past, with no public prosecution service and ill-organised means of enforcing the law, the prosecution of offenders necessarily depended on the involvement of private individuals, but that is no longer so. The surviving right of private prosecution is of questionable value, and can be exercised in a way damaging to the public interest. ———-The question is one which might well benefit from legislative attention.”

Indeed, Lord Bingham found it hard to regard the right of private prosecution as an important constitutional safeguard when private prosecutions are all but unknown in Scotland.

It should be pointed out that lawyers who unreasonably and prematurely embark on private prosecutions are not themselves immune from legal sanctions.

Thomas Hobson